We often come across people who have separated, but never quite got round to doing anything about getting divorced, or dealing with all the other aspects of their life together that may have to change because of their separation. So for instance one party might move out of the matrimonial home leaving the other with the children in the house and they each go their separate ways, assuming that at some point they will “sort it out”.
One risk of this is that if the party who has left then goes on to purchase property with another person, that second house becomes matrimonial property as well, because they are still married and this has legal implications.
People often assume that marriage is about love – it is, but it is also about law!
Being married carries legal implications. If you own property and are married then your spouse has an interest in that property, even if you no longer live together and even if you have not been in a proper relationship for some years.
So, you could have a situation where one party leaves, buys another house with his new partner and, whoops, that is all part of the original matrimonial assets.
Even more dire is the case where a party leaves the matrimonial home and, say, sets up in business or continues his business, can’t meet his debts and is declared bankrupt. As you know, once a person is bankrupt there is a Trustee who administers the assets on behalf of all the other creditors. The assets of course include matrimonial property and this will include the home in which the wife and children may have been living for some years. Once somebody is declared bankrupt then their share of the matrimonial home, assumed to be half unless there is any evidence otherwise, belongs to the Trustee – it does not belong to the wife and children and if it has to be sold to meet the creditors then they are suddenly without a home.
If, when they had originally separated, they had dealt with this and the property had been transferred into the wife’s name, then a Trustee in Bankruptcy could not take the property.
So beware, if you separate, but remain married, then you are in fact still married! Even if you no longer live together, even if you have new partners, if you haven’t actually gone through the divorce process you are still married with the legal implications of that. This means that you can still be affected by your partner’s bankruptcy or may acquire an interest in any property or assets that your partner acquires. This is probably not what either of you would want, so don’t forget separating is not enough – if you have definitely decided to permanently separate then do sort everything out properly! Get proper advice from a family solicitor.
For more information please visit our website: www.cotswoldfamilylaw.co.uk ; email us at email@example.com or telephone us on 01608 686590.